Illinois Legislature passes religious freedom protection act

The Illinois Legislature has sent Gov. Jim Edgar a bill that supporters claim will give greater protection to the free exercise of religion.

Modeled after the Religious Freedom Restoration Act of 1993, which the Supreme Court struck down as unconstitutional, the Illinois bill would require state courts to use a stringent two-part legal test for any law that substantially interferes with a citizen's religious practice. The Illinois Senate passed the bill in early spring and the House unanimously approved it yesterday.

Local zoning laws, for example, are often challenged by religious organizations seeking to build or expand churches or to run homeless shelters. Religious organizations often view such laws as a substantial infringement on their First Amendment right to practice religion. If the bill becomes law, a state court would be bound to grant the religious organizations exemptions from zoning laws unless the government could prove it had a “compelling interest” in the law and had used the “least restrictive means” possible to enforce it.

The Religious Freedom Restoration Act of 1993 would have required all courts in every state to use the test, but the Supreme Court invalidated the law, stating Congress did not have the constitutional authority to tell the judiciary what test to use when deciding free exercise of religion cases. However, the court ruled that the individual states might be able to implement such laws constitutionally.

An unusual group of representatives of organized religions and national civil rights groups—the Coalition for the Free Exercise of Religion—urged Congress to pass RFRA and since its demise has called on states to pass similar bills.

In early May, the Florida Legislature also passed and sent to Gov. Lawton Chiles a religious freedom protection bill identical to Illinois' and RFRA. Like Chiles, Edgar has not said whether he will sign the bill. John Webber, a spokesman for Edgar, said that the governor will make a public announcement regarding the bill after he reviews it. Nonetheless, both state legislatures overwhelmingly approved the bills, making potential vetoes of them appear useless.

Steffen Johnson, a Chicago attorney and spokesman of the Illinois Coalition for Free Exercise of Religion, lauded the Legislature's passage of the bill as “great victory” for religious liberty in Illinois.

“Laws that are ostensibly neutral toward religion—that do not discriminate against religion on their face—can have a dramatic impact on religious practice,” Johnson said. “In 1990, the U.S. Supreme Court said that all the First Amendment requires is that government [laws and actions] not specifically target religion. That standard is clearly not enough. Prior the 1990 Smith decision, the government had to justify all interference with religious liberty.”

Not all lawyers or constitutional scholars familiar with the Supreme Court's 1990 decision in Employment Div., v. Smith, believe that it undermined protection of religious liberty.

The Smith decision upheld an Oregon state unemployment law that prevented drug users from obtaining state unemployment compensation. Several American Indians challenged the law after they were fired from their jobs for smoking peyote, which they said was used for worship. They sued the state, claiming the law substantially burdened their right to freely exercise their religion.

Justice Antonin Scalia, writing for the majority in Smith, ruled against the American Indians, noting that the free-exercise clause of the First Amendment has never been interpreted to mean “that an individual's religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate.”

Marci Hamilton, a constitutional-law scholar at the Benjamin N. Cardozo School of Law and the attorney who argued against the congressional RFRA before the Supreme Court, said that before Smith the courts used a less rigid test to determine religious-liberty violations.

“The notion that these laws are replacing a standard prior to Smith is a myth being perpetuated by a variety of individuals and groups—and it is certainly not accurate,” Hamilton said. “Before 1990, the court employed a wide variety of tests, depending on the context. I think the groups making the claims against the 1990 decision are doing so in good faith—but without an understanding of the history of the free-exercise clause.”

Hamilton also said the state laws would subvert the separation of church and state.

“They are a clear establishment clause violation,” she said. “The laws are overreaching by religious groups.”

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THE EXPERTS

The First Amendment Center is an educational organization and cannot provide legal advice.

Ken Paulson is president of the First Amendment Center and dean of the College of Mass Communication at Middle Tennessee State University. He is also the former editor-in-chief of USA Today.

Gene Policinski, chief operating officer of the Newseum Institute, also is senior vice president of the First Amendment Center, a center of the institute. He is a veteran journalist whose career has included work in newspapers, radio, television and online.

John Seigenthaler founded the Newseum Institute’s First Amendment Center in 1991 with the mission of creating national discussion, dialogue and debate about First Amendment rights and values.

About The First Amendment Center

We support the First Amendment and build understanding of its core freedoms through education, information and entertainment.

The center serves as a forum for the study and exploration of free-expression issues, including freedom of speech, of the press and of religion, and the rights to assemble and to petition the government.

Founded by John Seigenthaler, the First Amendment Center is an operating program of the Freedom Forum and is associated with the Newseum and the Diversity Institute. The center has offices in the John Seigenthaler Center at Vanderbilt University in Nashville, Tenn., and at the Newseum in Washington, D.C.

The center’s website, www.firstamendmentcenter.org, is one of the most authoritative sources of news, information and commentary in the nation on First Amendment issues. It features daily updates on news about First Amendment-related developments, as well as detailed reports about U.S. Supreme Court cases involving the First Amendment, and commentary, analysis and special reports on free expression, press freedom and religious-liberty issues. Support the work of the First Amendment Center.

1 For All

1 for All is a national nonpartisan program designed to build understanding and support for First Amendment freedoms. 1 for All provides teaching materials to the nation’s schools, supports educational events on America’s campuses and reminds the public that the First Amendment serves everyone, regardless of faith, race, gender or political leanings. It is truly one amendment for all. Visit 1 for All at http://1forall.us/

Help tomorrow’s citizens find their voice: Teach the First Amendment

The most basic liberties guaranteed to Americans – embodied in the 45 words of the First Amendment to the U.S. Constitution – assure Americans a government that is responsible to its citizens and responsive to their wishes.

These 45 words are as alive and important today as they were more than 200 years ago. These liberties are neither liberal nor conservative, Democratic nor Republican – they are the basis for our representative democratic form of government.

We know from studies beginning in 1997 by the nonpartisan First Amendment Center, and from studies commissioned by the Knight Foundation and others, that few adult Americans or high school students can name the individual five freedoms that make up the First Amendment.

The lesson plans – drawn from materials prepared by the Newseum and the First Amendment Center – will draw young people into an exploration of how their freedoms began and how they operate in today’s world. Students will discuss just how far individual rights extend, examining rights in the school environment and public places. The lessons may be used in history and government, civics, language arts and journalism, art and debate classes. They may be used in sections or in their entirety. Many of these lesson plans indicate an overall goal, offer suggestions on how to teach the lesson and list additional resources and enrichment activities.

First Amendment Moot Court Competition

This site no longer is being updated … And the competition itself is moving to Washington, D.C., where the Newseum Institute’s First Amendment Center is co-sponsoring the “Seigenthaler-Sutherland Cup National First Amendment Moot Court Competition,” March 18-19, in partnership with the Columbus School of Law, of the Catholic University of America.

During the two-day competition in February, each team will participate in a minimum of four rounds, arguing a hypothetical based on a current First Amendment controversy before panels of accomplished jurists, legal scholars and attorneys.

FIRST AMENDMENT CENTER ARCHIVES

State of the First Amendment survey reports

The State of the First Amendment surveys, commissioned since 1997 by the First Amendment Center and Newseum, are a regular check on how Americans view their first freedoms of speech, press, assembly, religion and petition.

The periodic surveys examine public attitudes toward freedom of speech, press, religion and the rights of assembly and petition; and sample public opinion on contemporary issues involving those freedoms.
See the reports.